The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CXXVII. Smith and Smith's Case. Mich. 26 Eliz. In the Kings Bench.

LAmber Smith Executor of Tho. Smith, brought an Action up∣on the Case against John Smith, That whereas the Testator having divers Children Enfants, and lying sick of a mortal sick∣ness, being careful to provide for his said Children Enfants; The Defendant in Consideration the Testator would commit the Education of his Children, and the disposition of his Goods after his death during the minority of his said Children, for the Education of the said Children to him, promised to the Testator, to procure the assurance of certain Customary Lands to one of the Children of the said Testator: And declared further, That the Testator thereupon Constituted the Defendant Overseer of his Will, and Ordained and appointed by his Will, That his Goods should be in the disposition of the Defendant, and that the Testa∣tor died, and that by reason of that Will, the Goods of the Testa∣tor to such a value came to the Defendants hands to his great profit and advantage. And upon Non Assumpsit pleaded, It was found for the Plaintiff: And upon Exception to the Declaration in Arrest of Iudgment for want of sufficient Consideration, It was said dy Wray, Chief Iustice, That here is not any benefit to the Defendant, that should be a Consideration in Law, to in∣duce him to make this promise; For the Consideration is no other, but to have the disposition of the Goods of the Testator pro edu∣catione Liberorum: For all the disposition is for the profit of the Children; and notwithstanding, That such Overseers commonly make gain of such disposition, yet the same is against the intend∣ment of the Law, which presumes every Man to be true and faith∣ful if the contrary be not shewed; and therefore the Law shall in∣tend, That the Defendant hath not made any private gain to himself, but that he hath disposed of the Goods of the Testator to the use and benefit of his Children according to the Trust re∣posed in him. Which Ayliffe, Iustice, granted. Gawdy, Iustice, was of the contrary Opinion. And afterwards by Award of the Court, It was, That the Plaintiff Nihil Capiat per Billam.